92 Decision Citation: BVA 92-17797
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-55 118 ) DATE
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ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Margaret L. Peak, Associate Counsel
INTRODUCTION
The veteran had active service from March 1951 to March
1954. This matter came before the Board on appeal from a
February 1989 decision of the Portland Oregon regional
office (RO). The notice of disagreement was received on
March 22, 1989. The statement of the case was issued on
April 21, 1989. The substantive appeal was received on May
10, 1989. Supplemental statements of the case were issued
on July 21, 1989, June 22, 1990, and October 1, 1990. The
appeal was received at the Board in January 1991 and
remanded for further development in a decision of September
18, 1991. That having been accomplished, a supplemental
statement of the case was issued on March 5, 1992. The
appeal was returned to the Board on May 5, and docketed on
May 7, 1992. The veteran is represented in this matter by
AMVETS, and that organization submitted additional written
argument to the Board on May 19, 1992.
REMAND
The veteran is seeking a non service connected pension. His
original claim for pension, received in May 1988, lists his
disabilities as a stomach disorder (pancreas), a pinched
sciatic nerve, and memory loss. He had been a resident in a
Department of Veterans' Affairs (VA) Domiciliary from
December 1987, and, based upon medical records from that
facility, the RO rated him for chronic obstructive pulmonary
disease (COPD) at 30 percent, for recurrent pancreatitis by
history at 0 percent, and for osteoporosis of the thoracic
spine at 0 percent, for a combined rating of 40 percent.
Also noted, but not rated, was chronic alcoholism which had
been in remission for over a year.
Having noted that the veteran had never been accorded a
formal VA compensation and pension examination, we remanded
the case for a current evaluation of the veteran's
disorders. This examination was accomplished in November
and December 1991 at the VA domiciliary where he apparently
still resides, and produced impressions of eleven
disabilities. These were: 1. COPD, mild to moderate; 2.
chronic alcohol dependency, in continued remission; 3.
recurrent pancreatitis, by history; 4. status post
gastroduodenostomy for pseudocyst of the pancreas; 5.
osteoporosis of the thoracic spine; 6. chronic trapezius and
scapular muscle strain; 7. atypical right sciatica; 8. mild
hypercholesterolemia; 9. mild diabetes, non-insulin
dependent; 10. status post mild partial small bowel
intestinal obstruction (March 1990); and 11. nicotine
dependency, continuous.
In its December 1991 decision, the RO denied the veteran's
claim, stating that the medical evidence did not describe
disabilities so severe as to permanently preclude all forms
of substantially gainful employment, and that his
disabilities were not such as to warrant extra schedular
consideration under 38 C.F.R. § 3.321. The disabilities
rated were non-service connected and not permanent and
total. They were: COPD at 10 percent; history, recurrent
pancreatitis post operative pseudocyst at 10 percent;
thoraco-lumbar back strain, atypical sciatica at 10 percent;
mild diabetes at 10 percent; trapezius and scapular muscle
strain at 0 percent; coccygodynia at 0 percent; and status
post partial small bowel obstruction at 0 percent. The
combined rating was 30 percent.
Since we first remanded this case, the United States Court
of Veterans Appeals has issued several decisions pertinent
to the adjudication of pension cases. The holdings of these
decisions require, inter alia, that all disabilities receive
rating evaluations, and that, when the percentage
requirements of pension are not met thereby, that the
employability of the veteran be assessed in relation to his
existing disabilities.
We note that a review of the claims file reveals the
existence of disabilities that have not been rated by the
RO. These include a claim of memory loss from the veteran's
original claim, and the notation in the report of the most
recent examination that he suffers from hearing loss that
necessitates the wearing of hearing aids. We also note that
the report of the orthopedic consultation of December 1991,
includes the statement that the veteran claimed as his most
bothersome health problem of late the chronic pain in his
rectal area. The diagnosis was "probably coccygodynia. A
rectal problem would have to be ruled out by the medical
department."
The veteran's representative has implied that the VA has
failed in its duty to assist the veteran in the development
of his claim by neglecting to acquire his service medical
records. We note, however, that the veteran has never
requested these records and, in fact, has stated in numerous
histories of record that he suffered no ailments and
received no medical treatment while in service. In the
absence of the presentation of a well grounded claim for
service connection of a disorder, the VA is under no
obligation to acquire such records. 38 U.S.C. § 5107(b).
In order to complete the record, the Board is of the opinion
that further development is desirable. The case is
therefore REMANDED for the following action:
The RO should have the veteran examined
in order to establish the etiology of his
rectal discomfort, the extent of his
hearing loss, and whether there exists a
disability related to memory loss. The
claims folder should be made available to
the examiner prior to the examination.
Disabilities ascertained through these
examinations should be rated for pension
purposes.
When this development has been completed, the claim should
be reviewed by the RO. If the benefit sought on appeal is
not granted, the appellant and his representative should be
given a supplemental statement of the case with regard to
the additional development and should also be afforded an
opportunity to respond. The supplemental statement of the
case should include the appropriate Diagnostic Codes and a
discussion of their applicability to the veteran's
disabilities, as well as a discussion of the two standards
by which a permanent and total disability rating for pension
may be assigned. These standards may by found at 38 U.S.C.
§§ 1502(a), 1521(a), and implementing regulations. The
record should be returned to the Board for further appellate
consideration, if in order. No action by the appellant or
his representative is required until further notice is
received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA CHARLES E. EDWARDS, M.D.
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.